Pursuant to our Terms of Reference, the Independent Advisory Board for Supreme Court of Canada Judicial Appointments submits this report on the 2016 process for providing recommendations for appointment to the Supreme Court of Canada.

We thank you for the opportunity to serve on the Advisory Board and to participate in such an important process.

1. Introduction

This report has been prepared pursuant to paragraph 12 of the Terms of Reference (found in Annex B of this report) of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments (“Advisory Board” or “Board”) which states:

Reporting

Within one month after a judge is appointed, the Advisory Board must submit a report, in both official languages, to the Prime Minister that contains information on the carrying out of the mandate, the costs relating to the Advisory Board’s activities and the statistics relating to the applications received.

The report may also contain recommendations for improvements to the process.

The report must be made public.

This report covers all of the above enumerated stipulations, including information on the carrying out of the mandate, the costs related to the Advisory Board’s activities, and the statistics relating to the applications received. At the end of the report, the Advisory Board includes a series of recommendations for improvements to the process.

2. Establishment of the Advisory Board and the 2017 Process

The Advisory Board is an independent and non-partisan body whose mandate is to provide non-binding merit-based recommendations to the Prime Minister on Supreme Court of Canada (SCC) judicial appointments. The process was initiated by the Prime Minister in order to fill the seat on the SCC that became vacant on September 1, 2016 with the retirement of The Honourable Justice Thomas Cromwell.

The Advisory Board was established by the Governor in Council (GIC) on July 29, 2016 (Order in Council PC 2016-0693). The Terms of Reference for the Advisory Board were also approved by the GIC and made public through the same Order in Council.

The members of the Advisory Board are appointed pursuant to paragraph 127.1(1)(c) of the Public Service Employment Act as special advisers to the Prime Minister.

The Prime Minister of Canada announced the establishment of the Advisory Board and the appointment of its members on August 2, 2016 by issuing a News Release (Annex C).

The new process confers on the Advisory Board “the task of identifying suitable candidates who are jurists of the highest caliber, functionally bilingual, and representative of the diversity of Canada.” It reviewed candidates who submitted applications and provided a shortlist of 5 individuals for consideration by the Prime Minister on September 23, 2016. The deadline for applications was August 24, 2016, as outlined in the Prime Minister’s News Release and on the official website for the Advisory Board.

The Terms of Reference outline the membership of the Advisory Board:

Three members, at least two of whom are not advocates or barristers in a province or territory, nominated by the Minister of Justice;

A practising member in good standing of the bar of a province or territory, nominated by the Canadian Bar Association;

A practising member in good standing of the bar of a province or territory, nominated by the Federation of Law Societies of Canada;

A retired superior court judge, nominated by the Canadian Judicial Council; and

A legal scholar, nominated by the Council of Canadian Law Deans.

The Governor in Council is to designate one of the members to be the Chairperson of the Advisory Board. The Mandate Letter to the Chair and the Mandate Letters to the Members of the Advisory Board from the Prime Minister, dated August 4, 2016, stipulate that the term of the Advisory Board members is for a period of 6 months. Full biographical notes on the members of the Advisory Board can be found at Annex A.

As noted in the Terms of Reference, the Advisory Board is supported by the Office of the Commissioner for Federal Judicial Affairs Canada (FJA) and its Commissioner, or his or her delegate, acts as the ex officio secretary to the Advisory Board. The Executive Director of Judicial Appointments and Senior Legal Counsel at FJA fulfilled this role. FJA is also responsible for administering the application process.

3. Meetings of the Advisory Board

The Advisory Board held several meetings in-person and via teleconference during the months of August and September 2016 in order to: ensure that the call for applications reached a wide audience; prepare for the assessment of applications phase; assess incoming applications; select candidates to be interviewed; administer the interviews; and, make a final determination on the list of 3 to 5 candidates to be submitted to the Prime Minister for his consideration.

In early August 2016, FJA’s Acting Commissioner sent an introduction letter to Advisory Board members, a contact list and a draft agenda for the first meeting. Subsequently, members of the Advisory Board met via teleconference to discuss the role and mandate of the Advisory Board. General administrative questions were discussed with the FJA Acting Commissioner and the ex officio secretary to the Board. Particular attention was given to the Board’s mandate to actively seek out qualified candidates, and the Board decided to send a letter to key Canadian legal and judicial organizations with a broad reach. Pursuant to paragraph 8(e) of the Terms of Reference, the Advisory Board decided to consult with the Chief Justice of Canada on the needs of the Supreme Court and hold an in-person meeting before the application deadline in order to finalize the process by which incoming applications would be assessed and candidates would be interviewed.

After the first conference call, the Chair circulated a draft letter (to be ultimately sent to the key organizations to invite applications from their respective members) to Advisory Board members to seek their input. The letter was emailed to: the Canadian Judicial Council; the Federation of Law Societies of Canada; the Canadian Bar Association; the Council of Canadian Law Deans; the Canadian Superior Courts Associations; the Canadian Association of Provincial Court Judges; and, on August 12, to the Canadian Council of Chief Judges and the Indigenous Bar Association. Contact was also made with the Roundtable of Diversity Associations and the Ukrainian-Canadian Bar Association.

In mid-August, the Advisory Board met in-person in Ottawa to discuss: the mandate of the Board; consultation efforts to date; the applications review processes; evaluation matrices; consensus-based decision making; timelines for application review, interviews, reference checks, and Advisory Board deliberations; and, the production of the final list to be submitted with a report to the Prime Minister’s Office. The Advisory Board also noted that it was responsible to produce two distinct reports related to the current appointments process. The first report was sent with the shortlist of selected candidates to the Prime Minister, explaining the Board’s selection. This report also included the shortlisted candidates’ independent assessments on functional bilingualism administered by FJA. This (second) report is the final report of the Advisory Board which is being submitted within one month after the date of the appointment.

During this meeting in Ottawa, the Advisory Board also met with the Chief Justice of Canada to obtain her views on the needs of the Supreme Court of Canada.

The Board determined that interviews with the candidates would be a useful way to fully assess their experience and qualifications.

A few days after the application deadline passed, the Advisory Board convened in person in Ottawa to commence the review of applications. In the interim, the applications were translated, downloaded onto secure tablets and printed, in order to facilitate the work of the Board members. Based on this review, the Advisory Board contacted 10 candidates to interview and contacted identified references for each candidate before the interviews. Each candidate travelled to Ottawa to meet with the Advisory Board for an interview that assessed the qualifications and assessment criteria articulated in Annex D of this report. FJA also conducted assessments of each candidate’s functional bilingualism in both official languages in order to ensure that the candidate met the functional bilingualism requirement.

Finally, at the conclusion of the interviews, the Advisory Board met to: discuss the interviewed candidates and their applications; review their interview responses; share the comments from their references; and, verify their functional bilingualism assessment results. Security checks were also conducted. At the conclusion of these deliberations, the Advisory Board prepared its first report, including the shortlisted candidates, and submitted it to the Prime Minister’s Office on September 23, 2016.

4. Communications, Media and Public Affairs

To support the appointment of the newest Supreme Court of Canada justice as soon as possible given the Court was beginning its fall sitting in October 2016, the Advisory Board had an extremely tight timeline within which to conclude its work. Therefore, on August 2, the Prime Minister released a News Release which announced the launch of the Advisory Board and the appointments process. FJA was to provide support to the Advisory Board and be responsible for administering the application process.

On the same date, FJA launched a page on its Website that provided information on the Advisory Board, its Terms of Reference, its members, application process, qualifications and assessment criteria, frequently asked questions, and relevant contact persons.

The creation of the Advisory Board and the launch of the application process generated some media interest. Coverage was highest in early August 2016 following the announcement of the Advisory Board. Media attention included newspaper articles (print and online) as well as radio and television coverage. The Secretariat for the Advisory Board received inquiries from Le Droit, The Hill Times, and CBC, among others.

In the realm of public affairs and government engagement, on October 24, 2016, the Chair of the Advisory Board appeared with the Minister of Justice before the House of Commons Standing Committee on Justice and Human Rights.

5. Consultation and Outreach

Pursuant to paragraph 8 (e) of the Terms of the Reference, Advisory Board members must “consult with the Chief Justice of Canada and any key stakeholders that the members consider appropriate.” To this end, Advisory Board members met with the Chief Justice of Canada to obtain her views on specific needs of the SCC to enable the Court to fulfill its critical role in our constitutional democracy.

Furthermore, paragraph 8(b) of the Terms of Reference empowers the Advisory Board to both “review applications received from candidates and actively seek out qualified candidates.” As such, the Advisory Board consulted with a range of key organizations and encouraged them to share the call for applications with their respective memberships and encourage members to apply if they met the requisite qualifications. The vast majority of this engagement and outreach was undertaken in the first two weeks following the launch of the application process. Where the Board did receive responses from certain organizations suggesting that an individual be considered, the Advisory Board through its Secretariat, wrote back to these individuals asking them to consider the process and apply directly.

The letter sent to these organizations is included as Annex E. The response letters sent to individuals proposed by organizations, asking them to consider the process and apply directly is included as Annex F.

6. Applications

While the above-noted organizations were consulted and encouraged to share the call for applications with their memberships, individuals seeking appointment to the SCC had to personally complete the application form and provide all of the requested information and supporting documentation including the detailed responses to the essay questions, references, and a list of publications, judgments, and conference participation, as applicable. This information was used to confirm their eligibility for appointment, as well as to help the Advisory Board assess merit, per the criteria defined by the Government (Annex D).

The application period was open from August 2, 2016 to August 24, 2016. Application information and completed applications were received by email and processed by staff at FJA.

In total, 31 applications were received by FJA, as the Secretariat to the Advisory Board. The following chart and map outline the number of applications received by province:

Province

Number of applicants

%

Newfoundland and Labrador

4

13

Nova Scotia

3

10

New Brunswick

7

23

Quebec

3

10

Ontario

11

35

Manitoba

1

3

Saskatchewan

1

3

British Columbia

1

3

In terms of information on diversity, generated from self-identification by applicants on their application forms, the following data was obtained from the 31 applications received:

Groups

Number of applicants

%

Women

13

42

Men

18

58

Groups

Number of applicants

%

Anglophone

24

77

Francophone

7

23

Groups Self-indentification

Number of applicants

%

Ethnic/Cultural or Other

12

39

Visible Minority

3

10

Indigenous

4

13

Disabilities

2

6

LGBTQ2

2

6

The Advisory Board was very pleased with the number of applicants, as well as with the extremely high quality of applications.

7. Review Process

All members performed a complete and thorough review of all applications submitted for their consideration within the short timelines.

The review process first involved an individual review of the applications by Advisory Board members. A merit-based review was completed to assess the suitability of each of the candidates, in accordance with the Terms of Reference of the Advisory Board and the Qualifications and Assessment Criteria for the applications. The Advisory Board members used the applications, judgments, publications, conference presentations, and responses to the essay questions contained therein as the basis on which to create the list of 10 candidates to be interviewed. Advisory Board members contacted references for each of the 10 candidates selected to be interviewed.

As part of the interview process, simultaneous translation was offered to all candidates. The candidates selected for an interview had to undergo a functional bilingualism assessment administered by FJA immediately following their interview with the Advisory Board, in accordance with the stipulation to this effect articulated in the Qualifications and Assessment Criteria. Security checks were also conducted.

Decisions on the shortlist submitted to the Prime Minister were made after all interviews and functional bilingualism assessments were concluded.

8. Recommendation Process

Pursuant to the mandate of the Advisory Board, a list of 5 qualified candidates for the vacancy on the SCC was prepared and provided with a first report to the Prime Minister by the stipulated deadline of September 23, 2016. Recommended candidates were not prioritized; the proposed candidates were listed in alphabetical order. The report included a short synopsis detailing the merits of each recommended candidate, as well as the result of their individual assessment on functional bilingualism as determined by FJA.

The Advisory Board was very pleased that the Prime Minister made the appointment from the list of candidates submitted by the Advisory Board.

9. Costs

The costs of the Advisory Board relate primarily to travel and personnel (administrative support). Additional costs were minimized as the process could rely heavily on existing support and infrastructure. A permanent process will require some investments for elements such as Information Technology and dedicated secretariat resources.

While some expenses and operational costs are still being received and tabulated, it is estimated that the expenditures related to the Advisory Board for this appointment process will be approximately $215,000. This includes $92,772.74 for travel expenditures and per diems for Advisory Board members, approximately $10,000 for shortlisted candidates’ travel costs to attend interviews, with the remainder incurred by FJA to support the Advisory Board, including costs related to supplementary salaries, professional services, translation, IT, telecommunications and supplies.

10. Recommendations on Improvements to the Appointments Process and Work of the Advisory Board

During the call for applications and the implementation phase of the applications assessment process, the Advisory Board received feedback from candidates and through FJA (which also received feedback from candidates). Based on this feedback, the Advisory Board wishes to make the following recommendations to improve the appointments process and the work of future advisory boards established to undertake the work on future appointments to the SCC:

Timing of the Process. The process unfolded during the summer months when many people were on vacation and often away from their offices. The time of year made it challenging for applicants to complete the application forms, compile the requisite information, and attend interviews should they be selected to meet with the Advisory Board.

Timeframe for Applications and Application Consideration. Candidates were given a relatively tight timeframe within which to submit their complete applications. Given the length and the complexity of the application form and the amount of information requested, this required a lot of time, effort, and consideration on their part. Recognizing the importance of giving candidates as much time as possible, the work of the Advisory Board when it came to considering applications, sending out interview requests, contacting references and undertaking their deliberations to develop a shortlist for the Prime Minister was correspondingly tight. This proved particularly challenging in scheduling the interviews, as many candidates were out of the country during the time scheduled for their interviews with the Board. However, all interviews proceeded according to schedule with the kind cooperation of the interviewees.

Outreach is extremely important. Outreach was extremely important, as many candidates indicated that they were encouraged by others to apply. We would encourage additional outreach activities moving forward in order to target a broad spectrum of candidates from various backgrounds, which will also require a longer timeframe to accomplish. Within the timeframe provided, the Advisory Board maximized opportunities to do outreach through the assistance of the organizations previously mentioned.

Format of the application materials/forms. The Advisory Board recommends that the application format and requirements be further studied in order to ensure a straightforward format and to provide an effective basis on which the Advisory Board may evaluate candidates.

11. Post-announcement

Letters were issued to all applicants who were not appointed to thank them for their participation in this initial process. The Advisory Board would also like to express its sincere appreciation to all applicants who applied and were interviewed pursuant to this process.

12. Confidentiality

Pursuant to paragraph 11(1) of the Terms of Reference, each Advisory Board member had to sign an undertaking as to the confidentiality of the process. Similarly, pursuant to paragraph 11 (2) of the Terms of Reference, any “personal information provided to, and deliberations of, the Advisory Board are confidential and must be treated in a manner consistent with the provisions of the Privacy Act.” Furthermore, paragraph 11(3) articulates that Advisory Board members “must keep confidential any information brought before them in the performance of their functions.”

Therefore, the Advisory Board will not share any information pertaining to candidates.

13. Conclusion

The Advisory Board greatly appreciates the opportunity to serve the Prime Minister and all Canadians on such an important initiative. The process was illuminating and highlighted the exemplary jurists, academics and lawyers in Canada who applied for consideration under this process.

Annex A: Biographical Notes on the Members of the Advisory Board

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (Advisory Board) is an independent and non-partisan body whose mandate is to provide non-binding merit-based recommendations to the Prime Minister on Supreme Court of Canada appointments. It was constituted on August 2nd, 2016 and consists of seven members.

The Advisory Board consists of the seven following members

The Right Honourable Kim Campbell, ChairpersonNominated by the Minister of Justice
The Right Honourable Kim Campbell, P.C., C.C., O.B.C., Q.C., former Prime Minister of Canada and Canadian Consul General, and currently the Founding Principal of the Peter Lougheed Leadership College at the University of Alberta.

Lili-Anna Pereša, MemberNominated by the Minister of Justice
President and Executive Director of Centraide of Greater Montreal.

Stephen Kakfwi, MemberNominated by the Minister of Justice
Former Premier of the Northwest Territories and President of the Dene Nation, and currently working to improve the recognition and realities of Aboriginal peoples within Canada.

Susan Ursel, MemberNominated by the Canadian Bar Association
Currently a senior partner with a Toronto firm, and Chair of the Canadian component of the African Legal Research Team which provides legal research support to Envisioning Global LGBT Rights.

Jeff Hirsch, MemberNominated by the Federation of Law Societies of Canada
President of the Federation of Law Societies of Canada, and partner with a Winnipeg law firm.

Richard J. Scott, MemberNominated by the Canadian Judicial Council
Former Chief Justice of the Manitoba Court of Appeal, and current counsel, arbitrator and mediator in a Winnipeg law firm.

Camille Cameron, MemberNominated by the Council of Canadian Law Deans
Dean of the Schulich School of Law at Dalhousie University, and Chair of the Canadian Council of Law Deans.

The Right Honourable Kim Campbell served in 1993 as Canada’s nineteenth and first female Prime Minister. Prior to becoming Prime Minister, she held various Cabinet positions, including Minister of State for Indian Affairs and Northern Development, Minister of Justice and Attorney General of Canada, Minister of National Defence, and Minister of Veterans Affairs. She was the first woman to serve as Canada’s Minister of Justice and Minister of National Defence, as well as the first to serve as Minister of Defence of a NATO member country.

Ms. Campbell was the Canadian Consul General in Los Angeles from 1996 to 2000, and later taught at the Harvard Kennedy School of Government from 2001 to 2004. She was also Chair of the Council of Women World Leaders, and past President of the International Women's Forum. From 2004 to 2006, Ms. Campbell was Secretary General of the Club de Madrid, an organization of former presidents and prime ministers of which she is a founding member.

Since 2014, Ms. Campbell has devoted much of her time to serving as the Founding Principal of the new Peter Lougheed Leadership College at the University of Alberta. Ms. Campbell continues to speak on a wide variety of topics through her participation in the American Program Bureau and the National Speakers Bureau. She is a trustee of the International Centre for the Study of Radicalisation and Political Violence at King's College London, and serves on several corporate and non-profit boards, and advisory committees, including Equal Voice, a Canadian organization devoted to achieving gender parity in the Canadian House of Commons.

Lili-Anna Pereša, Member

Born in Montréal, Lili-Anna Pereša is an engineer by training and graduated from the École Polytechnique de Montréal in 1987. Ms. Pereša also holds a graduate degree in management from McGill University, and a master’s degree in political science from the Sorbonne in Paris. She has been President and Executive Director of Centraide of Greater Montreal since 2013.
Ms. Pereša first became a volunteer aid worker at the age of 25 when she accepted an assignment from World University Service of Canada to teach in Malawi. She later worked for Oxfam-Québec as a management consultant to Burkina Secours in Burkina Faso and, in 1994, she joined CARE Austria and worked in Croatia and Bosnia-Herzegovina.

Ms. Pereša directed several community and humanitarian organizations, including les petits frères des Pauvres, the YWCA of Montreal, and Amnesty International France, before serving as Executive Director of ONE DROP from 2009 to 2012.

She is a member of the Ordre des ingénieurs du Québec, the International Women’s Forum, the Amies d’affaires, and the Advisory Committee for the 2017 Summit of the Mallet Institute. She is also a member of the National Executive Committee of the 2017 Governor General’s Canadian Leadership Conference, a board member of the Domaine Forget, and the Mobile Giving Foundation Canada.

Ms. Pereša’s involvement in humanitarian aid has earned her numerous distinctions, including the Mercure Leadership Germaine-Gibara Award at the 2016 Mercuriades, the Meritorious Service Award for Community Service from the Canadian Council of Professional Engineers, an honorary doctorate from the Université de Montréal, and being named a Fellow of Engineers Canada.

Stephen Kakfwi, Member

Stephen Kakfwi is a former Premier of the Northwest Territories (NWT) and former President of the Dene Nation. Originally from Fort Good Hope, NWT, he represented the Sahtu riding in the NWT Legislative Assembly from 1987 until his retirement in 2003, serving the entire time as an elected member of the NWT Executive Council. He is the longest-serving Cabinet Minister in the territory’s history.

Mr. Kakfwi is a popular public speaker known for his personal and moving insights on the residential school experience, and the importance of meaningful reconciliation. He founded Canadians for a New Partnership in 2014, a coalition of distinguished Canadians committed to strengthening the country through the creation of a new partnership between First Peoples and others in Canada. Mr. Kakfwi maintains a successful independent consulting practice advising on conservation, indigenous affairs, and resource and governance negotiations. Originally trained as a teacher, he currently serves as a mentor and advisor to the organization Dene Nahjo, and as a board member for Pearson College.

Mr. Kakfwi is a recipient of the Governor General’s Northern Medal, and the National Aboriginal Achievement Award for public service. He is a celebrated singer-songwriter, and has been nominated for National Aboriginal Music Awards. Mr. Kakfwi lives in Yellowknife, NWT, with his wife. They have three children and four grandchildren.

Susan Ursel, Member

Susan Ursel received her Bachelor of Laws from Osgoode Hall Law School in 1984. She received an award in civil litigation during the Bar Admission course, and was called to the Bar in 1986. She currently works as a senior partner with the Toronto law firm of Ursel Phillips Fellows Hopkinson LLP, and serves as Chair of the Canadian component of the African Legal Research Team which provides legal research support to the multi-disciplinary project Envisioning Global LGBT Rights.

An experienced litigator, Ms. Ursel’s work includes both arbitration/trial level work, and appellate advocacy. She practices in the areas of labour, employment, pay equity, employment equity, human rights, pensions, and benefits law. She has practiced at all court levels, including the Supreme Court of Canada, as well as extensively before labour boards, human rights tribunals, and arbitration boards.

Ms. Ursel is a member of the Ontario Bar Association, the Canadian Association of Labour Lawyers, and the Association of Human Rights Lawyers. She has also been a founding member or director of various groups and organizations, including the Coalition for the Reform of the Ontario Human Rights Commission, the Association of Human Rights Lawyers, the Foundation for Equal Families, the Feminist Legal Analysis Committee, the Gay and Lesbian Issues and Rights Committee of the Canadian Bar Association: Ontario (now the SOGIC of the Ontario Bar Association), and Pro Bono Law Ontario.

Ms. Ursel has received the Lifetime Achievement Award from Pro Bono Ontario in 2016, the Canadian Bar Association’s Young Lawyer's Pro Bono Service Award in 1998, and the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference Hero Award in 2011.

Jeff Hirsch, Member

Jeff Hirsch is the President of the Federation of Law Societies of Canada, and represents the Federation on the Action Committee on Access to Justice in Civil and Family Matters, where he is a member of the Steering Committee.

Called to the Bar in 1987, Mr, Hirsch practices as a partner with the Winnipeg firm Thompson Dorfman Sweatman LLP, primarily in the areas of administrative law, commercial litigation and professional negligence. Mr. Hirsch was selected for inclusion in the 2014, 2015 and 2016 editions of Best Lawyers in Canada for Administrative and Public Law. He has been, and continues to be, an advocate for enhancing Canadians’ ability to access legal services and for effective, equal access to justice.

Mr. Hirsch was President of the Law Society of Manitoba from 2009 to 2010, and is a Life Bencher, having served from 2002 to 2010. He taught Remedies at the Faculty of Law at the University of Manitoba from 1995 to 2014 and, in 2017, he will return to Robson Hall as a sessional lecturer on access to justice.

Richard Jamieson Scott, Member

Richard Jamieson Scott graduated from the University of Manitoba and was called to the Manitoba Bar in 1963. He practiced law from 1963 to 1985 with the Winnipeg law firm Thompson Dorfman Sweatman, was chairperson of the Civil Litigation Subsection of the Manitoba and Canadian Bar Associations from 1975 to 1978, and a member of the board of directors for Legal Aid Manitoba from 1976 to 1982. He was a Bencher of the Law Society of Manitoba from 1980 to 1984, and President from 1983 to 1984.

In 1985, Mr. Scott was appointed as a judge to the Court of Queen’s Bench of Manitoba and, later that year, as Associate Chief Justice of the Court of Queen’s Bench of Manitoba. In 1990, he was appointed Chief Justice of the Manitoba Court of Appeal.

Mr. Scott has also been an active member with the Canadian Judicial Council since joining in 1985. He was Chairperson of various committees (including the Judicial Independent Committee, the Special Working Committee on the Preparation of Ethical Principles for Judges, and the Judicial Conduct Committee) and served as the Council’s First Vice-Chairperson.
After retiring as Chief Justice of Manitoba in 2013, Mr. Scott served as the Independent Chairperson of the Discipline Committee of the Manitoba Law Society, and as a counsel/arbitrator/mediator with the Winnipeg civil litigation firm of Hill Sokalski Walsh Olson. He has also been active with several charities, including the Legal Help Centre, the Manitoba Heart and Stroke Foundation, the Winnipeg Foundation, and Winnipeg Harvest.

Camille Cameron, Member

Camille Cameron is Dean of the Schulich School of Law at Dalhousie University, and Chair of the Canadian Council of Law Deans. Prior to joining Dalhousie University, she was the Dean of Windsor Law School, and a professor at the University of Melbourne in Australia where she also served a term as Associate Dean and was Director of the law school’s Civil Justice Research Group. Before beginning her academic career, Ms. Cameron worked in private practice for 10 years, specializing in civil litigation.

In 1996, Ms. Cameron’s worked in Cambodia with a human rights group training lay criminal defenders and judges, and she has since been a consultant on similar judicial training projects in various countries, including Vietnam, Laos, Mongolia, China, Thailand, the Maldives, and Indonesia.

Ms. Cameron’s research interests focus on class actions, litigation funding, access to justice and the administration of civil justice. She has presented on these and related topics at national and international conferences. She is a member of an international research collaborative group that has just completed a book on comparative class actions in common law and civil law systems. In 2015, she worked with the Federal Court of Australia to advise the Indonesian judiciary on that country’s class action legislation.

Ms. Cameron has served as the Chair of the Board of Governors of Legal Aid Windsor, the Windsor Advisory Board of Community Legal Aid, and the Ontario Law Deans. She has also been a member of the Board of the Law Commission of Ontario, and a member of the Board of Directors of Hiatus House, a shelter for women and children in Windsor.

Annex B: Terms of Reference for the Advisory Board

Mandate

1
The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (“Advisory Board”) is an independent and non-partisan body whose mandate is to provide non-binding, merit-based recommendations to the Prime Minister on judicial appointments to the Supreme Court of Canada

Composition of the Advisory Board

2 (1)
Advisory Board members are appointed during pleasure under paragraph 127.1(1)(c) of the Public Service Employment Act as special advisers to the Prime Minister.

(2)
The Advisory Board is to consist of

(a)
three members, at least two of whom are not advocates or barristers in a province or territory, nominated by the Minister of Justice;

(b)
a practising member in good standing of the bar of a province or territory, nominated by the Canadian Bar Association;

(c)
a practising member in good standing of the bar of a province or territory, nominated by the Federation of Law Societies of Canada;

(d)
a retired superior court judge, nominated by the Canadian Judicial Council; and

(e)
a legal scholar, nominated by the Council of Canadian Law Deans.

(3)
The Governor in Council is to designate one of the members to be the Chairperson of the Advisory Board.

Length of Terms

3 (1)
Advisory Board members are to be appointed for terms of up to five years, which terms may be renewed for one or more further terms.

(2)
The Advisory Board is to be convened at the discretion and at the request of the Prime Minister.

Support

4
The Office of the Commissioner for Federal Judicial Affairs is to provide support to the Advisory Board and will be responsible for administering the application process.

5
The Commissioner for Federal Judicial Affairs, or his or her delegate, is to act as an ex officio secretary to the Advisory Board.

Recommendations

6 (1)
In accordance with this mandate, the Advisory Board must submit to the Prime Minister for his or her consideration, within the time period specified by the Prime Minister on the convening of the Advisory Board, the names of at least three, but up to five, qualified and functionally bilingual candidates for each judicial vacancy for which the Advisory Board is convened.

(2)
The Advisory Board must provide an assessment of how each of those candidates meets the requirements of the Supreme Court Act and the extent to which they meet the criteria established by the Prime Minister, and any additional reasons in support of their candidacy.

7
The Prime Minister may request that the Advisory Board provide names of additional qualified candidates who are functionally bilingual.

Recommendation Process

8
Advisory Board members must

(a)
at all times, observe the highest standards of impartiality, integrity and objectivity in their consideration of all candidates;

(b)
review applications received from candidates and actively seek out qualified candidates;

(c)
meet as required to assess candidates and engage in deliberations;

(d)
be guided by the criteria established by the Prime Minister;

(e)
consult with the Chief Justice of Canada and any key stakeholders that the members consider appropriate;

(f)
in establishing a list of qualified candidates, seek to support the Government of Canada’s intent to achieve a gender-balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society, including Indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities including those whose members’ gender identity or sexual orientation differs from that of the majority; and

(g)
comply with the Conflict of Interest Act and the Ethical and Political Activity Guidelines for Public Office Holders.

9 (1)
Advisory Board members must declare to the other members any direct or indirect personal interest or professional or business relationship in relation to any candidate, including any gift or other advantage received by the members from the candidate.

(2)
If such a declaration is made, the Advisory Board must decide, having regard to the nature of the interest or relationship, whether the member must withdraw from any deliberations about the candidate.

(3)
If the Advisory Board decides that the member must withdraw from any deliberations about a candidate, those deliberations are undertaken by the remaining Advisory Board members, provided the number of remaining members is not less than four.

10
Advisory Board members may travel for the purpose of carrying out their mandate.

Confidentiality

11 (1)
Advisory Board members must sign a confidentiality agreement as a precondition of their appointment.

(2)
Personal information provided to, and deliberations of, the Advisory Board are confidential and must be treated in a manner consistent with the provisions of the Privacy Act.

(3)
Advisory Board members must keep confidential any information brought before them in the performance of their functions.

Reporting

12 (1)
Within one month after a judge is appointed, the Advisory Board must submit a report, in both official languages, to the Prime Minister that contains information on the carrying out of the mandate, the costs relating to the Advisory Board’s activities and the statistics relating to the applications received.

(2)
The report may also contain recommendations for improvements to the process.

(3)
The report must be made public.

Restriction

13
A member of the Advisory Board is not eligible to be considered for a federal judicial appointment for a period of one year after the day on which they cease to be a member of the Advisory Board.

Annex C: News Release from the Office of the Prime Minister of Canada

Today, the Prime Minister, Justin Trudeau, announced a new process for appointing Supreme Court of Canada Justices that is open, transparent, and sets a higher standard for accountability.

Under the new process, an independent and non-partisan Advisory Board has been given the task of identifying suitable candidates who are jurists of the highest caliber, functionally bilingual, and representative of the diversity of our great country.

For the first time, any qualified Canadian lawyer or judge may apply for appointment to the Supreme Court of Canada through the Office of the Commissioner for Federal Judicial Affairs.
The seven-member Advisory Board, chaired by former Prime Minister Kim Campbell, includes four members nominated by independent professional organizations. The Advisory Board will review candidates who apply and will submit a shortlist of three to five individuals for consideration by the Prime Minister.

To enhance transparency, the assessment criteria guiding the Advisory Board, the questionnaire that all applicants must answer, and certain answers provided to the questionnaire by the Prime Minister’s eventual nominee, will all be made public.

The Minister of Justice and the chair of the Advisory Board will appear before Parliament to discuss the selection process. A number of Members of Parliament and Senators – from all parties – will also have the opportunity to take part in a Q&A session with the eventual nominee, before she or he is appointed to the Supreme Court of Canada.

Fundamentally, this process will demonstrate a degree of rigor and responsibility that Canadians expect from their government.

Quote

“The Supreme Court of Canada is respected nationally and internationally for its excellence—it is recognized as a model of a strong, independent judicial institution. This is due in no small part to a tradition of appointing only the most exceptional and impressive individuals to the court. We are committed to maintaining this tradition—and improving on it—by introducing an open, transparent and non-partisan process that will help ensure that the best, most well-qualified people reflective of Canadian society are named to Canada’s top court.”
– Rt. Hon. Justin Trudeau, Prime Minister of Canada

Quick Facts

The following members have been named to the Independent Advisory Board for Supreme Court of Canada Judicial Appointments:

The Right Honourable Kim Campbell – Chairperson – former Prime Minister of Canada and Canadian Consul General, and currently the Founding Principal of the Peter Lougheed Leadership College at the University of Alberta

Camille Cameron – member – Dean of the Schulich School of Law at Dalhousie University, and Chair of the Canadian Council of Law Deans

Jeff Hirsch – member – President of the Federation of Law Societies of Canada, and partner with a Winnipeg law firm

Stephen Kakfwi – member - former Premier of the Northwest Territories and President of the Dene Nation, and currently working to improve the recognition and realities of Aboriginal peoples within Canada

Lili-Anna Pereša – member - President and Executive Director of Centraide of Greater Montreal

Richard J. Scott – member – former Chief Justice of the Manitoba Court of Appeal, and current counsel, arbitrator and mediator in a Winnipeg law firm

Susan Ursel – member – currently a senior partner with a Toronto firm, and Chair of the Canadian component of the African Legal Research Team which provides legal research support to Envisioning Global LGBT Rights

The application period ends on Wednesday, August 24.

Qualified lawyers and persons holding judicial office from across Canada who wish to be considered for the upcoming vacancy must complete and submit an application package no later than 23:59 Pacific daylight time on August 24, 2016.

Applications are now being accepted for the position that will become vacant in September with the retirement of the Honourable Justice Cromwell.

Annex D: Qualifications and Assessment Criteria

Qualifications

The qualifications for appointment to the Supreme Court of Canada are set out in the Supreme Court Act, R.S.C. 1985, c. S 26. Section 5 provides that “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”

In order to be eligible for appointment to the Supreme Court of Canada, a candidate must be:

a current judge of a superior court of a province, including courts of appeal;

a former judge of such a court;

a current barrister or advocate of at least 10 years standing at the bar of a province; or

a former barrister or advocate of at least 10 years standing.

There are special rules for appointment of three judges from Quebec. Section 6 provides that “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” In the Reference re Supreme Court Act, ss 5 and 6, the Supreme Court stated that only current superior court judges (i.e. judges of the Court of Appeal of Quebec and the Superior Court of Quebec) and current members of the Quebec bar of at least 10 years standing are eligible for appointment to one of the three Quebec positions on the Supreme Court.

All judges of the Supreme Court must live in the National Capital Region or within 40 kilometres thereof. Candidates must either currently meet this qualification or undertake to move their residence, if appointed to the Supreme Court, in order to meet it.

Functional bilingualism

The Government has committed to only appoint judges who are functionally bilingual.

The Supreme Court hears appeals in both English and French. Written materials may be submitted in either official language and counsel may present oral argument in the official language of their choice. Judges may ask questions in English or French. It is expected that a Supreme Court judge can read materials and understand oral argument without the need for translation or interpretation in French and English. Ideally, the judge can converse with counsel during oral argument and with other judges of the Court in French or English.

Assessment Criteria

Judges of the Supreme Court of Canada face multiple, complex and occasionally competing expectations. In keeping with Canada’s evolution into a mature constitutional democracy, the role of the courts and the Supreme Court in particular, has become ever more important. The criteria for appointment to the Court must reflect both the needs of any court of final appeal, and the particular circumstances, history and context of Canadian society and its legal system. The criteria must facilitate the Court’s ability to: resolve disputes between and among all manner of parties, communicate its decisions effectively to the Canadian public, uphold the constitution, and protect the rule of law.

Criteria for assessment may be grouped along two axes, one individual and the other institutional. Individual criteria relate to the skills, experience and qualities of candidates themselves. Particulars of legal training, of non-legal professional experience and of community involvement will vary greatly from individual to individual, but must be assessed to arrive at an evaluation of the candidate’s potential for excellence in the judicial function. There are also numerous personal qualities that will bear on whether a candidate has the appropriate judicial temperament. Institutional criteria will overlap to some degree with individual ones. But as the Court’s composition shifts over time, particular needs may emerge as more necessary to enable the Court to perform its general and final appellate function in all legal areas.

Part of the selection process will involve determining the ways and degree to which particular candidates embody the skills, experience and qualities that best meet the Court’s needs at a particular point in time. The selection process must retain an appropriate degree of flexibility.

Personal Skills and Experience

1. Demonstrated superior knowledge of the law

The chief consideration for any appointment is a person’s ability to perform, and achieve excellence in, judging. At the Supreme Court, cases and references can arise in any legal area including public, private and international law. Judges must interpret and apply the governing statute and rules of the Supreme Court in a variety of proceedings relating to hearings, motions and appeals. Candidates for the Court must therefore possess deep knowledge of the law, in particular Canadian law. Knowledge of indigenous legal traditions may also be considered. This depth of skill may be acquired in a variety of ways: specialized legal training and study, professional practice, authoritative or scholarly legal writing and/or prior judicial experience.

The Supreme Court hears cases from matters under federal jurisdiction as well as from all provinces and territories, including Quebec, which follows a civil law tradition for most private law matters. Familiarity with the civil law tradition, therefore, is a strength for any candidate.

2. Superior analytical skills

A jurist must synthesize, distinguish, compare and contrast a variety of legal sources. They must efficiently determine which of the vast possible materials that constitute “the law” are most relevant to a specific legal question; and understand, weigh and resolve conflicts among those materials. An appellate judge must also review lower court decisions, determine appropriate grounds of appeal, distinguish between questions of fact and law and apply the suitable level of deference or correction. All of these are analytical functions requiring an exceptionally high degree of skill and discernment.

3. Ability to resolve complex legal problems

The core function of the Supreme Court is to adjudicate legal disputes and to provide reasons explaining its decisions. As an adjudicator, a judge is not just required to hear a case, but to give an answer: to bring the matter to a legal conclusion. In appellate cases, resolution may be elusive as the issues tend to feature reasonably competing arguments. Nonetheless, a judge must be able to arrive at a sound decision, to support that decision with reasons and to provide the requisite certainty so that the instant dispute is resolved, and so that lower courts receive sufficient guidance to decide similar cases in the future.

Therefore, prior experience in adjudication is relevant though not essential. Adjudication can occur in many contexts, including administrative tribunals, arbitration bodies, and trial and appellate courts. As the Supreme Court is itself an appellate court, prior appellate judicial experience may be especially relevant but, again, is not essential for appointment.

4. Awareness of, and ability to synthesize information about, the social context in which legal disputes arise

A judge should demonstrate a general awareness of and an interest in knowing about the social problems that give rise to cases coming before the courts. They should be sensitive to changes in social values relating to the subject matter of cases before the Supreme Court. Many of the cases that the Supreme Court hears are not solely focused on technical questions of law. Instead, they involve complex interactions between law and fact, particularly social facts that help to explain a law’s purpose, the way that it tends to function and its effects on people or society as a whole. This interaction between law and social fact is most prominent in constitutional cases, but is not limited to them. A judge must therefore be able to receive evidence and argument about these social facts, or context, and use them to appropriately resolve the specific questions posed.

5. Clarity of thought, particularly as demonstrated through written expression

In most cases, the Supreme Court is expected to, and does, issue written reasons for its decisions. Decisions are the Court’s most important method of communicating with parties, with courts, with other branches of government, and with the Canadian public. Reasons help to explain the basis for deciding complex legal issues one way versus another. Reasons also satisfy the Court’s duty to provide guidance to the lower courts which are expected to apply those decisions in future cases. Excellence in written expression is thus essential to the Court’s work, and a candidate’s prior writing must be reviewed. Such writing can take a number of forms: judicial decisions, reports, memoranda of legal arguments, books, treatises and scholarly articles. The writing may be reviewed for, among other things, clarity, precision, command of the law, persuasiveness and balance. It is expected that the materials reviewed will primarily be legal in nature, though non-legal written expression may provide some assistance.

6. Ability to work under significant time pressures requiring diligent review of voluminous materials in any area of law

The Supreme Court hears appeals in all areas of law. Its nine members share a variety of adjudicative tasks. Cases at the Supreme Court often contain hundreds of pages of materials, and judges work on multiple cases at the same time. Judges must review materials in preparation for cases, review materials for decisions they are writing and review drafts and memos from their colleagues. The workload is heavy and constant. The job therefore requires significant stamina, industry and learning ability.

7. Commitment to public service

Judges are part of the community and fulfill an essential service to the public in addition to their constitutional role as impartial dispute arbiters. A demonstrated commitment to community engagement through involvement in community and volunteer organizations is a strength.

Personal Qualities

1. Irreproachable personal and professional integrity

The Supreme Court has noted: “The judge is the pillar of the entire justice system and of the rights and freedoms which that system is designed to promote and protect”. Judges must themselves embody the ideals upon which the rule of law depends.
Canadians, thus, rightfully expect the highest level of ethical conduct from judges. As the Chief Justice of Canada has stated, “The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.” As noted by the Canadian Judicial Council’s Ethical Principles for Judges, “Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.”

2. Respect and consideration for others

The Supreme Court is a collegial court which is composed of nine judges who work and sit together day in and day out. Its judges deal with issues of the highest national importance. Their decisions are final and not subject to appeal to any other court in Canada. It is critical that each judge is able to work collaboratively with his or her colleagues and debate issues in a respectful and constructive manner. In addition, judges must be sensitive when dealing with persons in subordinate positions. It is expected that they will model the highest standards of professionalism, respect and courtesy.

3. Ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society

Along with legal expertise, a judge will invariably draw on common sense and experience. It is, therefore, crucial that their perspective is neither too narrow nor resistant to change. A judge must have the capacity to empathize with persons who come from backgrounds that are very different from her own.

4. Moral courage

Judicial independence has been recognized as an unwritten constitutional principle under Canada’s Constitution. It exists in order to protect the ability of judges to decide cases impartially, free of any external influence or coercion. Canadian judges enjoy a high degree of independence that is respected around the world. Nevertheless, Supreme Court judges sometimes face extremely challenging issues. They may be faced with making a decision that is at odds with the stated wishes of the government, with public opinion or with the views of their colleagues. This requires a measure of fortitude.

5. Discretion

Judges deal with sensitive and personal information. Their discussions are subject to deliberative secrecy and cannot be revealed. It is critical therefore that judges conduct themselves in a discreet fashion.

6. Open-mindedness

One of the most important qualities of a judge is the ability to maintain an open mind about any case that comes before him or her. To be clear, judges are not expected to operate as blank slates. The fact that a candidate has expressed an opinion on some issue that may one day come before the Court is not disqualifying. But a judge must be seen as able to weigh the evidence and argument in a particular case fairly and impartially, and to set aside any prior personal opinions when rendering a decision.

Institutional Needs of the Court

1. Ensuring a reasonable balance between public and private law expertise, bearing in mind the historic patterns of distribution between those areas in Supreme Court appeals

The Supreme Court of Canada is a general court of appeal for Canada which hears appeals in all subject areas from provincial and territorial courts of appeal, from the Federal Court of Appeal and from the Court Martial Appeal Court of Canada. According to the most recent statistics, approximately one quarter of the cases heard by the Supreme Court are criminal non-Charter cases, almost another fifth are criminal Charter cases, and another fifth are non-criminal constitutional/Charter cases. The Court hears other types of cases but the subject-areas just noted represent the most significant areas of the Court’s workload.

2. Expertise in any specific subject matter that regularly features in appeals and is currently underrepresented on the Court

Because of its diverse caseload, the Court must have judges with a diversity of expertise in order to address particular subject matters that will arise. A vacancy on the Court may give rise to a need for expertise in a particular subject matter: e.g. criminal, administrative, federal or commercial law.

3. Ensuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society

Canada is one of the world’s most diverse societies, but that diversity is not fully reflected in its institutions. The Supreme Court is the most important and recognizable symbol of the justice system. Having a Court that is reasonably reflective of Canadian diversity helps to ensure that, in any particular case, the Court can benefit from a range of viewpoints and perspectives. A reasonably reflective Court also promotes public confidence in the administration of justice as well as in the appointment process.

The Prime Minister’s mandate letters to Board members (http://pm.gc.ca/eng/news/2016/08/04/mandate-letter-members-independent-advisory-board-supreme-court-canada-judicial) states that they should develop and submit, no later than September 23, 2016, a list of three to five qualified and functionally bilingual candidates to fill the vacancy resulting from Justice Thomas Cromwell’s resignation. The Prime Minister asks that the Board, in making its selection, consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.

The Board’s Terms of Reference (http://www.fja-cmf.gc.ca/scc-csc/2016-MalcolmRowe/mandate-mandat-eng.html), stipulate that members must actively seek out qualified candidates and, in establishing a list of qualified candidates, they seek to support the Government of Canada’s intent to achieve a gender-balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society, including Indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities, including those whose members’ gender identity or sexual orientation differs from that of the majority.

As the Board’s Chairperson, I encourage you to use your networks and knowledge of the judiciary and legal community in your jurisdictions to identify qualified candidates, and urge them to submit an application through the Office of the Commissioner for Federal Judicial Affairs at the following address: http://www.fja-cmf.gc.ca/scc-csc/2016-MalcolmRowe/form-formulaire-eng.html. Your early attention to this matter is much appreciated as the deadline to file an application for appointment to the Supreme Court of Canada is August 24, 2016, at 23:59 PDT.

Annex F: Response Letters sent to Individuals Identified by Organizations

Ottawa, August 19, 2016

Dear XXX:

RE: Supreme Court of Canada Judicial Appointments Process

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments recently received correspondence in which you were strongly recommended as a highly qualified candidate to fill the vacancy left on the Supreme Court of Canada further to the resignation of Justice Thomas A. Cromwell.

As you may know, it is part of the mandate of the Advisory Board to actively seek out qualified candidates. In order to avoid any appearance of bias or conflict, the Advisory Board decided to reach out to a variety of groups and associations representing judges and lawyers rather than solicit applications on an individual basis. Furthermore, the new Supreme Court of Canada Appointments Process also requires candidates to file an application in order to be considered to fill the vacancy left on the Supreme Court of Canada.

Advisory Board encourages you to give thought to this process and to file an application if it interests you. To this end, please refer to the website of the Office of the Commissioner for Federal Judicial Affairs where the Supreme Court of Canada appointments process is described (http://www.fja-cmf.gc.ca/scc-csc/2016-MalcolmRowe/index-eng.html).